P v Police HC Christchurch CRI 2007-409-169

[2007] NZHC 2037

This case has been anonymized

NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000169

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 August 2007

Counsel:        P N Dyhrberg for Appellant

C E Butchard for Respondent

Judgment:      23 August 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against refusal of bail pending the appellant’s sentencing upon a charge of assault with intent to injure.  He was charged with assaulting the victim on 22 February last, or more accurately, with being a party to that assault.

[2]      Briefly, the facts were that the appellant was required to leave a house and the victim was instrumental in excluding him.   Aggrieved about that Mr P   fetched his son, P  , and returned to the subject address.   In the appellant’s presence his son assaulted the victim.  The assault became a serious one.

While it began with punches, it culminated in kicks and even some stomping when

P V NZ POLICE HC CHCH CRI 2007-409-000169  23 August 2007

the victim was on the ground.   As a result the victim sustained some quite nasty injuries.

[3]      Mr P   defended the charge.  The hearing was before Judge Green on 3

August.  The Judge gave an oral decision in which he found that the appellant had both  procured the offence,  and  incited  it,  by his  actions  while  the  assault  was proceeding.   By a considerable distance he was satisfied that the appellant  was, therefore, a party to his son’s offence.

[4]      In the  meantime, on 2 July, Richard P   had pleaded guilty and was remanded to 6 August for sentencing.   Judge Green appropriately considered that both should be sentenced together. For that reason he remanded the appellant for three days to 6 August in the knowledge that he would not be the sentencing Judge.

[5]      On 6 August Mr Dyhrberg was not available to appear for the appellant but arranged for other counsel to do so.   The matter came before Judge Blaikie who remanded the case to 30 August, perhaps because he had not seen a pre-sentence report, but also because substitute counsel was not in a position to make submissions in mitigation.   The issue of bail was not considered afresh by Judge Blaikie. Moreover, from the record which is before me, it is evident that Judge Green did not formally consider the matter, perhaps because at that stage it was a remand for only a few days.

[6]      Appropriately in my view Ms Butchard accepted in her written submission that bail should be considered de novo in this Court.   Argument has proceeded on that footing.

[7]      In support of bail Mr Dyhrberg argued that the appellant is aged 60, that he has no relevant previous convictions, that he is in employment and that in all the circumstances a sentence of imprisonment is not inevitable.   Hence, his argument continued, even given the terms of s13, it was an appropriate case for bail, the more so given that the principal offender has been on bail throughout.

[8]      Ms Butchard’s submission to the contrary is based on the proposition that if not inevitable, a sentence of imprisonment is highly likely and that in terms of s13 it is not therefore in the interests of justice that bail be granted.  She has, of course, also drawn attention to the fact that the sentencing is now scheduled for one week hence, so that the remand in custody is hardly lengthy.

[9]      I agree with the assessment that a sentence of imprisonment is highly likely given the features of this assault, including the close involvement of the appellant with the actions of his much younger son.   Nonetheless I think that  a principal consideration is that the present situation is uneven.   It does not seem appropriate that Mr P   as a secondary offender is in custody, and has been for a few weeks, when the principal offender is on bail.

[10]     Largely for that reason, but also given his personal circumstances including that he has employment to go to, I consider that bail should be granted.  Needless to say that should be taken as no indication that a sentence less than imprisonment is appropriate because, of course, the sentencing outcome is not for me.

[11]     Bail is granted on similar conditions as applied previously, namely: [a]      Mr P   is to reside at 35B Connall Street, Christchurch, [b]     he is not to associate with the victim, and

[c]     he is not to go to Frederick Street (which was the scene of the offence).

He is remanded, of course, to 30 August 2007 at 2.15 pm.

Solicitors:

Peter Dyhrberg Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent